The Ninth Circuit issued an important opinion abut the availability of Longshore disability benefits for a retiree. This published opinion, issued in Christie v. Georgia-Pacific Co., follows a Fourth Circuit opinion on January 3, 2018, which also addressed retiree benefits. From coast to coast, the federal appellate courts have issued decisions which protect retirees.
Brief Summary of Christie:
The Summary of the Christie decision succinctly explains the Ninth Circuit’s reasoning:
The panel interpreted the language of 33 U.S.C. § 902(10) defining “disability,” and held that claimant’s decision to retire early did not prevent him from receiving permanent total disability benefits. The panel further held that substantial evidence in the record supported the administrative law judge’s findings that claimant was disabled with the meaning of the Act: he achieved maximum medical improvement, he could no longer return to his previous employment, and the employer failed to establish that suitable alternative employment existed. The panel noted that the [Benefits Review] Board did not question the ALJ’s factual findings, and remanded for calculation of an award of benefits.
Detailed Discussion of Christie:
The facts explain more. Mr. Christie injured his back in 1999, while moving bags of concrete. He returned to work. Five years later, in 2004, he required surgery for the work-related back injury. In 2006, the employer assigned Mr. Christie to a lighter duty position because of the physical limitations of his back injury. In 2010, Mr. Christie learned that the employer was eliminating its early retirement program. Believing he would be unable to continue working for another six years because of his back injury, Mr. Christie retired early. He was only 55-years-old. Not long after retirement, Mr. Christie required additional medical treatment. His doctors determined that he had reached maximum medical improvement but that he could not return to his regular job. Mr. Christie was permanently restricted from several physical activities as of December 31, 2012.
At the formal hearing, the administrative law judge determined that Mr. Christie did not retire “solely” because of the early retirement package. Instead, Mr. Christie believed that he would have continued working for the better part of a decade if not for his back problems.
The Benefits Review Board disagreed based on some decisions it issued regarding retirement. (One of those decisions, Moody v. Huntington Ingalls, was the case that the Fourth Circuit reversed on January 3, 2018.) Essentially, the Board’s retirement rationale was that “an employee is not entitled to receive a total disability award after he retires for reasons unrelated to the work injury because there is no loss of wage-earning capacity due to the injury.” As applied to Mr. Christie, the “Board determined that Christie’s loss of wages was due to his decision to retire early, and not because of his work-related injury . . . .”
The Ninth Circuit disagreed with the Board, determining that “employees are entitled to obtain compensation for a permanent disability arising out of a work-related injury.” A “disability” is defined as:
[I]ncapacity because of injury to earn the wages which he employee was receiving at the time of injury in the same or any other employment . . . .
See 33 U.S.C. § 902(10).
To obtain permanent total disability benefits, an “employee must show: (1) he is disabled within the meaning of the Act, (2) the work-related injury he suffered that makes him disabled has healed to the fullest extent possible, and (3) he cannot return to prior employment.” At that point in time, the employer has the duty to establish the existence of suitable alternative employment that the employee can perform. If the employer cannot establish suitable alternative employment, then the disabled work is entitled to permanent total disability.
Here, the Ninth Circuit determined that the definition of “disability” in the Act “makes no reference to retirement or its timing, nor to whether an employee decides to retire voluntarily or involuntarily.” Instead, the term “disability” under the Longshore Act simply “means an inability, resulting from an injury suffered at work, to earn the wages an employee was earning from his employer at the time he was injured.” That is it.
Then, just like the Fourth Circuit in Moody, the Ninth Circuit commented on the concept of “retirement” and what that concept means now, in 2018:
Indeed, the Board’s reading of § 902(10) assumes that retirement categorically results in a person’s incapacity to work. Yet, the language of § 902(10) does not give any indication that retirement is to be treated in that manner. Neither is it the case that retirement, in all instances, means that a retiree is incapable of working. Retirement simply means that a person is no longer working a particular job. In short, although retirement and incapacity to work may be linked, they are not necessarily one and the same.
A decision to retire is not as relevant in a Longshore disability claim as insurance carriers suggest. Section 902(10) should not be read in an overly restrictive manner. The Fourth Circuit got it right when it held that “voluntary retirement does not preclude the existence of a disability under the Act . . . .” There is a difference between being unwilling and being unable to work.
Just like the Fourth Circuit’s Moody opinion, Christie offers additional protection for injured workers who retire. In my opinion, some of the important language that both the Fourth Circuit and the Ninth Circuit used to protect retirees can be extended to disabled workers who have not retired. By resting their opinions on the Act’s definition of “disability,” those opinions should be persuasive in other claims involving disabilities. Just like both courts said, there is a difference between being unwilling and being unable. And as the Ninth Circuit pointed out, “retirement” references a “particular” job, not every job everywhere.